THE CYGNET. ÆTNA INS. CO. v. CONVERSE et al., 126 F. 742

ALDRICH, District Judge. In this case, disaster came to the barge Zulu and her cargo by reason of her being in collision with the upper point of one of the piers of the Rocks Bridge in the Merrimac river, while she was in tow of the steam tug Cygnet bound down the river for Newburyport, and by reason of such collision the barge was capsized and her cargo lost. The only question is one of fact, and is whether the disaster was caused by the fault of the tug or by that of the barge.

The passage between the piers of the bridge is a narrow one, and the currents incident to the ebb and flow of the tide at that point, taken in connection with the tortuous course of the channel and the narrow passage, create a situation which requires the exercise of care and precaution in making the voyage at this point, and we think the care and precaution of the tug were not what they should have been under the circumstances.

According to the testimony of the master of the tug, who was called by her owners, the night was dark and rainy, and the wind quite fresh from the eastward; and, taking everything into account, we think the situation called for greater precaution and a higher degree of skill and diligence on the part of the tug than were exercised on the occasion in question. The barge was being towed by two hawsers attached to the towing bitts on the bow of the barge. These hawsers were about ioo feet in length.

At the time of the accident the tug having the barge in tow was proceeding down the river on an ebb tide, and, after passing the red buoy above the bridge, the course of the tug was such as not to be in line with the opening between the piers of the bridge, and it was necessary, therefore, to make a turn or change in the course in order to make the passage. We think that reasonable, care and prudence, under the circumstances, required the tug to change her course at such a time and at such a point as would enable her to straighten out the line before entering the opening between the piers. This was not done.

The change in her course was not undertaken until the tug was within 150 feet of the bridge, and the consequence was that she had not so far completed the turn, coming in on a swing from the West Newbury side of the river, as to straighten out the tow at the time the tug passed the point of the pier with which the barge was brought into collision. At the time of the disaster the tug was proceeding at full speed, and at the rate of 3% or 4 miles an hour through the water.

Proceeding at this rate, with the pier on the inside of the circle, and entering the passageway before the line was straightened, the inevitable result was to bring the barge closer to the point of the pier than the tug herself was at the time she passed that point, and as a consequence the barge was brought into actual collision with the head of the pier around which the tug was making the turn.

We do not think it necessary to deal with the question of the competency of the master of the barge, for the fact appears that those on the barge did all they could to avert the collision by at once putting her wheel hard astarboard, thereby using all the power within their control to avoid the disaster. The movements of the barge were practically controlled by the tug. The tug determined the manner of making fast to the barge, and the time and manner at which the passage should be attempted.

It appears that the captain of the tug neither looked to see whether the tow was straightened out on its course, nor received any information from the lookout in that respect after passing the red buoy. We think it was not reasonable for the tug, with such a length of tow, to delay the change of course until she was within 150 feet of the bridge.

If, under the circumstances of the current, tide, weather, and darkness, the tug could not have changed her course seasonably, it was her duty, as master of the situation — especially as she is presumed to have determined the time of sailing — to have lain by until the conditions secured safety. As a result, we think the collision was due to the fault of the tug, and not that of the barge. The District Court, in its decree, gave the owners of the tug the 'benefit of the limitation liability provided by sections 4283-4285, Rev. St. U. S. [U. S. Comp. St. 1901, pp. 2943, 2944].

There seems to be no question that this portion of the decree was justified. In fact, the petition in behalf of the appellant admits this. Consequently, while there must be in the District Court a new decree adjudging the tug in fault, and giving the .¿Etna Insurance Company the benefit of its petition so far as consistent with the limitation of liability, that portion of the decree appealed from which concerns that limitation must be conserved in the new decree to be entered in accordance with our conclusions.

Questions of interest, expenses attending the appraisal, and the taxable costs in the District Court, must be disposed of as directed in our opinion and judgment of September 16, 1896, in The H. F. Dimock, 77 Fed. 226, 23 C. C. A. 123. The decree of the District Court is reversed, and the case is remanded to that court, with directions to enter a decree in accordance with our opinion passed down this day, and the iEtna Insurance Company will recover its costs of appeal.